Regina v Tara [2005] SBHC 91; HCSI-CRC 353 of 2004 (18 August 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 353-04

REGINA

-v-

ENOCH TARA

Hearing: 8^th August - 15^th August 2005
Judgment: 18^th August 2005

P. Little and R. Iomea for the Crown
M. Anders for the Defendant.

Palmer CJ.:

The Defendant, Enoch Tara has been charged with the murder of his child that on the 9^th March he murdered Jacinta Lusi Nago. He pleaded not guilty and his trial commenced before this court on 8^th August 2005.

At close of prosecution case, his lawyer, Mr. Anders has submitted that there is no case to answer under section 197 of the Criminal Procedure Code ("the CPC"). Actually the correct section is 269 of the CPC. Section 197 relates to cases tried in the Magistrates Courts.

Section 269(1) of the CPC provides as follows:

"When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty." [emphasis added]

The test to be applied in section 269(1) of the CPC is whether or not there is "no evidence that the accused ... committed the offence." In other words, if there is some evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact¹. In R. v. Tome² the Court of Appeal clarified what test should be applied in a submission of a no case to answer under section 269(1) of the CPC.

"The court must take the prosecution case at its highest and that means accepting the evidence most favourable to the prosecution when determining whether an accused has a case to answer. The test then is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty.

The distinction is important because rejecting the no case submission leads to the next stage of the trial. The accused may elect to give evidence in which event the final test would be applied in the light of all the evidence then before the court. If the accused does not give evidence the tribunal of fact has the benefit of final addresses during which issues of credibility of witnesses and sufficiency of evidence not relevant to the no case determination will be explored."

Although the wordings of the relevant section in the CPC for a no case to answer in the High Court, section 269(1) is different from the wording used for the Magistrates Court (section 197), being "that a case is not made out against the accused person sufficiently to require him to make a defence" the essential requirements in my respectful view are basically the same. In the Magistrates court, the test to be applied is that there is either no evidence or insufficient evidence to prove the element of the charge. If the submission of 'no case to answer' is successful, the defendant will not be required to answer the charge or make a defence and shall be entitled to a finding of not guilty.

In R v Maenadi Watson, Smith Pitapio, Youngston Watson & Saro Norman (Unrep. Criminal Case No. 16 of 1997) Muria CJ stated at pages 3 - 5:

"The starting point on the consideration of a no case to answer submission is section 197 Criminal Procedure Code [...].

[...]

That section is specifically worded to suit the circumstances of a criminal trial where there is no trial by jury. As such in Solomon Islands where a judge is both a judge of fact and law he is entitled to go beyond the mere consideration of evidence on the essential element of the offence as expressed in the English Practice Note [1962] 1 All ER 448 and referred to in Archbold Criminal Pleading Evidence and Practice, 38 Ed. para. 575 (a). A judge in a criminal trial in Solomon Islands is entitled to consider the sufficiency of the evidence at the close of the prosecution case in order to determine whether or not the accused has a case to answer.

The words "it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence" in section 197 clearly bore out the basis for the stand which I pointed out. Thus, it is not simply a matter of the prosecution adducing evidence to establish the essential element of the offence, but adducing evidence which is sufficient to make out a case against the accused. That is what the judge must be satisfied with under section 197 Criminal Procedure Code [the same requirement I might add under section 269(1) of the CPC].

In this jurisdiction, R -v- Lutu [1985/86] SILR 249 pointed this out. It is the authority on the application of s. 196 (now s. 197) Criminal Procedure Code and ought to be followed. His Lordship Ward CJ expressed the law in section 196 in the following words at pp. 250 - 251:

"In this case I am the judge both of fact and law. As such my duty to decide whether a case has been made out sufficiently to require the accused to make a defence under section 196 goes further than that of a judge sitting with a jury.

Thus if at the close of the prosecution case I, as judge of fact, do not feel that there is sufficient evidence even at that stage on which I could convict, I should stop the case.

I feel that the words in section 196 that where "it appears to the court that a case is not made out sufficiently to require (the accused) to make a defence" suggest that, where the tribunal is judge of fact as well as law, it is entitled to consider the sufficiency of the evidence at the close of the prosecution case."" (emphasis added)

[See also the case of R v Philip Tahea & two others (Unrep. Criminal Case No. 14 of 1995) at pages 1 - 5].

Has a prima facie case been sufficiently made out so as to require the Defendant to state his defence? Is there evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty? If there is the Defendant must be put on his defence.

Submission of the Defendant.

The submission of the Defendant is two pronged. First it is submitted that the crucial link to the cause of the death cannot be established with sufficient certainty to require the Defendant to make a defence. Secondly, the prosecution evidence is either unconvincing or so discredited in cross examination that it is sufficient even if uncontradicted by the defence to make a conviction possible.

Element of causation.

Mr. Anders for the Defendant submits that the causation factor in this case has not been established sufficiently by Prosecution to the extent that it can be successfully relied on by Prosecution as establishing the guilt of the Defendant. He challenges the evidence as being flimsy or so unconvincing.

The crucial evidence of causation in this case comes from the evidence of Jocelyn Asali, ("Jocelyn") mother of Jacinta ("the Deceased"), and Sabella Nae ("Sabella"), mother of another witness Ida Nele ("Nele") and aunty of Jocelyn, who were present when the crucial act was alleged to have been committed. Both allege they saw the Defendant raise his right hand with the knife in his hand in a striking motion.

The crucial evidence of Jocelyn as recorded is as follows:

"When he came to the room what happened?

When he came in we struggled for the baby.

What did he do and what did you do?

He came and swung the knife backwards and said give me the baby and he said I will kill you if you do not give me the baby.

Then I gave him the baby.

He just pulled the baby out of my hands.

He held the baby with his left hands.

He took the baby faced it backwards and whipped the baby.

I saw him whipping with the knife.

The front side or flat side?

The blunt side of the knife.

What did you do?

I did not say any word I just remained quiet.

I just called for mother Nae to come.

Did you see the knife hitting the baby?

When I saw him swinging the baby I just bent down because I was frightened. I just screamed and bent down. I was then quiet after that.

Did you look up again?

Then he gave the baby back to me.

The baby was already stiff, only the white part can be seen, the black part cannot be seen.

Only the right hand and right leg were shaking.

Did he say anything?

Yes.

He said here’s your baby still alive.

He then went out.

What did you do?

I was carrying the baby and crying.”

Under cross examination she maintained her position and her view as to what happened.

"Enoch had the bush knife in his hands when he took the baby from you?

Yes he came with the bush knife.

It is possible the bush knife hit the baby with the bush knife on the head?

I strongly believed that he used the bush knife to whip the baby with it.

You believed that but you did not see anything happen?

Yes.

You did not see anything happen with the knife?

Yes I did not actually see when he cut the baby but I saw him when he swung the knife to the baby.

The only time was when he took the baby from you?

Yes he was holding the knife at that time.

After you did not see the knife again?

Yes I only saw him swung the knife but I did not see him after he gave the child to me.

The knife was swung as he took the baby from you?

For the first time he swung the knife when he took the baby and when he gave the baby back to me.

In your first statement to police you said you saw him cut the baby from the back, you did not see that?

I did not see that."

The second witness who gave direct evidence as to the causation element was Sabella Nae ("Sabella"). Although the most that can be gleaned from her evidence at its highest is that she also saw the Defendant with his bush knife in his right hand raised in the air as he approached Jocelyn and the Deceased, she did not see what happened thereafter as she was too frightened to look. She also confirmed seeing the condition of the baby changed abruptly after the Defendant left, eyes turning white and pupils constricted and the baby struggling; consistent I might add with a fitting state described by another witness. When she opened her eyes again, the condition of the baby had changed. This is consistent with what Jocelyn alleges or believed happened, that the Deceased had been struck by the Defendant with the bush knife. The prosecution case taken at its highest is that the sudden change was the direct result of the injury inflicted by the Defendant and could not have been related to the illness of the child. There was no suggestion that the changeover was gradual or consistent with the deterioration in the condition of the child due to any illness she had or may have been suffering from.

The next crucial evidence came from witness Ida Nele ("Nele") who confirmed the evidence of Sabella that she was called to assist with the baby. Her observations are relevant because she was also able to confirm the baby’s condition before and after the incident. What she observed and described on the appearance of the baby on arrival was consistent with the evidence of Nele and Jocelyn. She told the court that the baby’s eyes were turning around, her body shaking and the mother crying. The baby’s condition eventually deteriorated to the point where she observed only the hands opening and closing, the pupils withdrawn with only the whitish part of the eyes visible and the baby becoming weak. Her observation on the other hand, as to the condition of the baby before the incident, was that though the child was not well, she was still responsive to attention.

The evidence of Florence Dedei ("Florence”) relates to her observations after the incident, when the child was taken to Lelegia Aid Post. She was the Nurse Aid stationed at that Aid Post. Her observations are consistent with that of other witnesses; the child being stiff with the pupils absent or couldn’t be seen and the child unable to cry.

The nurse at Konide Clinic, Wendy Kikolo ("Wendy") also made similar observations. She described the baby’s condition as in a "fitting state"; body stiff and not moving, with her eyes rolled up.

The observations of Dr. Malcolm John Dodd, a forensic pathologist who carried out a post mortem examination or autopsy on the exhumed body of the Deceased on 8^th May 2004, two years after the alleged murder was committed, were consistent with the allegations of prosecution, of the child having been struck on the back of the head with a bush knife. What is significant about his observations is the "transverse oriented linear 9 mm fracture through the left lateral edge of the occipital bone", which he observed on the "unfused cranial plates" of the Deceased’s skull, which despite thorough cross examination from Mr. Anders, did not rule out completely the direct link or real possibility, that the fracture may have been caused by anything other than the blunt side of the Defendant’s bush knife. This in my view is quite critical in this case.

This court will be entitled at the end of the day to consider the totality of the evidence before it and the necessary weight to be attached before making its reasoned conclusions whether there was a reasonable doubt as to causation. At this juncture, all I need to be satisfied with is whether there is some admissible evidence which is capable of supporting a conclusion beyond reasonable doubt that the accused is guilty? In my respectful view there is and this Defendant must be put on his defence.

Unreliability of the Prosecution Evidence

As to the second submission relied on, that the prosecution case is either unconvincing or so discredited in cross examination, that it is sufficient even if uncontradicted by the defence to make a conviction possible, respectfully I cannot agree with this submission. I am not satisfied the evidence adduced in support of the prosecution case had been so tarnished to the extent that it cannot be relied on by this court. The proper time for assessing credibility and reliability issues in this instance is at end of the trial and or after hearing closing submissions.

I am satisfied the Defendant has a case to answer and must be put on his defence.

The Court

END NOTES

1. R. v. Tome CA-CRAC 4-04 10th November 2004
2. (ibid)